9th Cir: after CtApp remand, future detention governed by 1226(a), no mandatory detention
Saturday, 26 July 2008
Casas-Castrillon v. DHS (9th Cir. 7/25/08)
FISHER MSmith Farris
The petitioner won an appeal before the 9th cir, case remanded to BIA - has been in detention for almost 7 years. Based on the same-day decision in Prieto-Romero, the CtApp found that 1226(a), not 1226(c) or 1231(a) applied to his future detention.
We reject the government’s suggestion that § 1226(c) mandates Casas’ detention for the duration of his now seven-year confinement. As we explained in Tijani v. Willis, 430 F.3d 1241, 1242 (9th Cir. 2005), § 1226(c)’s mandatory detention provision applies only to “expedited removal of criminal aliens.” The Supreme Court similarly recognized in Demore v. Kim, 538 U.S. 510 (2003), that § 1226(c) was intended only to “govern[] detention of deportable criminal aliens pending their removal proceedings,” which the Court emphasized typically “lasts roughly a month and a half in the vast majority of cases in which it is invoked, and about five months in the minority of cases in which the alien chooses to appeal” his removal order to the BIA. Id. at 527-28, 530 (emphasis in original). The Department of Homeland Security (“DHS”) has similarly interpreted § 1226(c) to apply only “during removal proceedings.” See 8 C.F.R. § 236.1(c)(1)(i). The “conclusion of proceedings” occurs upon the dismissal of the alien’s appeal by the BIA. See id. § 1241.1(a).
* * * An alien whose case is being adjudicated before the agency for a second time – after having fought his case in this court and won, a process which often takes more than a year – has not received expeditious process. See Tijani, 430 F.3d at 1242. We therefore conclude that the mandatory, bureaucratic detention of aliens under § 1226(c) was intended to apply for only a limited time and ended in this case when the BIA affirmed Casas’ order of removal in July 2002. Thereafter, the Attorney General’s detention authority rests with § 1226(a) until the alien enters his “removal period,” which occurs only after we have rejected his final petition for review or his time to seek such review expires. See Prieto-Romero, slip op. at 9295.
CtApp found that 1226(a) does authorize continued detention (since removal to Colombia is possible), but that statute / procedural due process requires an individualized bond hearing: "There is a difference between detention being authorized and being necessary as to any particular person. We hold that the government may not detain a legal permanent resident such as Casas for a prolonged period without providing him a neutral forum in which to contest the necessity of his continued detention."
CtApp found that POCR review (w/ no admin appeal and no in-person hearing) fell far short of procedural DP requirements. Remanded to DistCt with orders to grant habeas unless ImmCt grants him a bond hearing or shows that one already occurred.
